Lamont
Reed, a prisoner incarcerated at the Federal Correctional
Institution, Beckley, has moved to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. Mot.
Vacate, Set Aside, or Correct Sentence, Doc. No. 1
(“Mot. Vacate”). Reed argues that Amendment 794
to the United States Sentencing Guidelines-effective after
his sentence was imposed-applies retroactively and entitles
him to a reduction in his advisory sentencing range. The
government responds that Amendment 794 does not apply
retroactively, and that even if it did, Reed would not be
entitled to a reduction in his sentence. I conclude that
Amendment 794-a revision to the purely advisory Sentencing
Guidelines-does not provide a basis for habeas relief under
section 2255. Therefore, I dismiss Reed's habeas petition
for lack of jurisdiction.

I.
Standard of Review

Section
2255 provides a prisoner in federal custody an opportunity to
challenge the legality of his or her sentence. To obtain
relief under section 2255, the petitioner must show that his
or her prior sentence was invalid because the sentence: (1)
was “imposed in violation of the Constitution or laws
of the United States”; (2) was imposed “without
jurisdiction” by the sentencing court; (3) was
“in excess of the maximum authorized by law”; or
(4) is “otherwise subject to collateral attack.”
28 U.S.C. § 2255(a). The standard is a high one; even
constitutional errors will not be redressed through a section
2255 petition unless they have had a “substantial and
injurious effect” that results in “actual
prejudice” to the petitioner. Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (internal citations
omitted); Underwood v. United States, 166 F.3d 84,
87 (2d Cir. 1999) (applying Brecht's harmless
error standard to section 2255 petition).

A
section 2255 petition “may not be employed to
relitigate questions which were raised and considered on
direct appeal.” Cabrera v. United States, 972
F.2d 23, 25 (2d Cir. 1992); see also Reese v. United
States, 329 F. App'x 324, 326 (2d Cir. 2009)
(quoting United States v. Sanin, 252 F.3d 79, 83 (2d
Cir. 2001)). That limitation prohibits relitigation of issues
that were expressly or impliedly decided on direct appeal.
United States v. Ben Zvi,242 F.3d 89, 95 (2d Cir.
2001). A court may only reconsider an earlier decision if it
is “confronted with ‘an intervening change of
controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest
injustice.'” United States v. Becker, 502
F.3d 122, 127 (2d Cir. 2007) (quoting United States v.
Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)).

The
petitioner bears the burden of proving, by a preponderance of
the evidence, that he is entitled to relief. See Napoli
v. United States, 45 F.3d 680, 683 (2d Cir. 1995). A
district court is not required to accept the petitioner's
factual assertions as credible “where the assertions
are contradicted by the record in the underlying
proceeding.” Puglisi v. United States, 586
F.3d 209, 214 (2009). Section 2255 also requires that the
district court hold a hearing on the petitioner's motion
unless “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” Chang v. United States, 250 F.3d 79,
85 (2d Cir. 2001). But “although a hearing may be
warranted, that conclusion does not imply that a movant must
always be allowed to appear in a district court for a full
hearing if the record does not conclusively and expressly
belie his claim.” Id. (citing Machibroda
v. United States, 368 U.S. 487, 495 (1962)). “If
it plainly appears from the [petition], any attached
exhibits, and the record of prior proceedings that the
[petitioner] is not entitled to relief, the judge must
dismiss the [petition].” Puglisi, 586 F.3d at
213.

II.
Background

Reed's
current petition was preceded by a criminal case, United
States v. Reed, 3:12-cr-00074 (WWE) (D. Conn.), and an
appeal, United States v. Reed, 14-3812 (2d Cir.).
Throughout this section, I use “Cr. Doc.” to
refer to docket entries in Reed's criminal case, and
“App. Doc.” to refer to docket entries in his
appeal.

A.
Indictment and Plea

On April 9, 2012, Lamont Reed was indicted (along with
seventeen others) for conspiracy to possess with intent to
distribute 280 grams or more of a mixture or substance
containing a detectable amount of cocaine base (“crack
cocaine”), in violation of 21 U.S.C. §§
841(b)(1)(A)(iii) & 846. Indictment, Cr. Doc. No. 12. The
charges were brought after an FBI-led investigation into drug
trafficking in New Haven by a street gang known as the Grape
Street Crips. Final Presentence Report, Cr. Doc. No. 877, at
6 (“PSR”).

On
November 7, 2013, Reed pled guilty before United States
Magistrate Judge Holly B. Fitzsimmons, pursuant to a written
plea agreement, to the lesser included offense of conspiracy
to possess with intent to distribute 28 grams or more of a
mixture or substance containing a detectable amount of
cocaine base, in violation of 21 U.S.C. §§
841(b)(1)(B)(iii) & 846. See Plea Agreement, Cr.
Doc. No. 673. Judge Fitzsimmons issued findings and
recommended that Reed's guilty plea be accepted by the
court. Findings & Recommendation, Cr. Doc. No. 674.

B.
Sentencing

A
presentence report was ordered and prepared by the United
States Probation Office, which calculated Reed's advisory
sentencing guidelines using the 2013 Guidelines manual.
Because Reed's conduct “conservatively include[d]
at least 203 grams of cocaine base, ” the Probation
Office calculated a base offense level of 30 pursuant to
U.S.S.G. § 2D1.1(c)(5) (offense involving distribution
of at least 196 grams, but less than 280 grams, of cocaine
base). PSR, Cr. Doc. No. 877, at 11. The Probation Office
subtracted three levels for acceptance of responsibility,
resulting in a total offense level of 27. Id. at 12.
Reed's criminal convictions were calculated to yield a
criminal history score of 17, which placed Reed in criminal
history category VI. Id. at 17. Reed's advisory
guideline range therefore was 130 to 162 months. Id.
at 23. The Probation Office noted, however, that the
Sentencing Commission had issued a proposal for public
comment-subsequently adopted as Amendment 782-that would
reduce Reed's total offense level to 25, which would
result in an advisory guideline range of 110 to 137 months.
Id. at 25. In its presentencing memorandum, the
government did not object to that reduction of Reed's
total offense level, see Gov't's Sentencing
Mem., Cr. Doc. No. 887, and the Court used a total offense
level of 25 at sentencing. See Sentencing Hr'g
Tr., Cr. Doc. No. 1014, at 35.

On
September 4, 2014, United States District Judge Warren W.
Eginton accepted Reed's proposed guilty plea.
Id. at. Judge Eginton then heard argument from
counsel and a statement by Reed. Reed's counsel
extensively addressed “Reed's involvement” in
the criminal conspiracy, and contended that Reed “was
only on the phone discussing” crack cocaine and
“looking for connections.” Sentencing Hr'g
Tr., Cr. Doc. No. 1014, at 7. Reed, his counsel emphasized,
“wasn't pounding the streets, [and] wasn't
distributing anything.” Id. He “was
never . . . alleged as a member of the Grape Street Grips,
” and “was never . . . alleged [to have
participated] in any hand-to-hand transactions.”
Id. at 8. Reed's attorney also noted that other
defendants in Reed's case who were “gang member[s],
. . . drug dealer[s], . . . [and] shooter[s] for the
gang” had received sentences ranging between 18 and 64
months. See Id. at 9-10. Judge Eginton acknowledged
that of the “13 [defendants] sentenced” in
Reed's case, “none of them were close to
[Reed's guideline minimum of] 110 months, ” but he
explained that the apparent disparity was due to Reed's
“past history” and extensive criminal record.
Id. at 10, 13; see also Id. at 18, 22-23
(Reed's criminal record was “why there seem[ed] to
be a disparity . . . between what [Judge Eginton] did with 13
others and what [he] should be doing here.”).

The
government disputed Reed's attorney's
characterization of Reed as a minor participant. The
Assistant United States Attorney argued that Reed “was
a substantial player in [the] drug operation, ” and
that Reed and the leader of the Grape Street Crips
“pooled their money together several times a week to
purchase wholesale quantities of cocaine.” Id.
at 15. “[T]he suggestion that [] Reed . . . didn't
play a significant role . . . [was] actually inaccurate,
” asserted the government. Judge Eginton
“agree[d] with the government” that Reed's
role in the offense was not insignificant, and added that he
thought “[P]robation agree[d] with the government,
” as well. Id. at 16.

Reed
then made a statement to Judge Eginton, in which he argued
that he was “not responsible for [] 203 grams” of
crack cocaine, “was [not] a substantial player, ”
and was “no big-time drug dealer.” Id.
at 27-28. Reed's insistence that he was “not
responsible for 203 grams” led his attorney to follow
up that Reed did not “want[] to withdraw his
plea.” Id. at 30. Reed clarified that he was
not seeking to withdraw his plea and was willing to be
sentenced “based upon the involvement of 203 grams of
cocaine base.” See Id. at 33.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Judge
Eginton proceeded to calculate Reed&#39;s advisory
guidelines, address the considerations of 18 U.S.C. &sect;
3553(a), and impose a sentence. He began with the base
offense level of 30 for 203 grams of crack cocaine.
Id. at 35; see U.S.S.G. § 2D1.1(c)(5).
He reduced three levels for acceptance of responsibility and
two levels to account for the proposed amendment to the
Sentencing Guidelines, but did not reduce any levels for role
in the offense. Sentencing Hr'g Tr., Cr. Doc. No. 1014,
at 35. The result, Judge Eginton calculated, was a ...

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